Abortions Before Fetal Viability Are Legal: Might Science and the Change on the Supreme Court Undermine That?
The United States Supreme Court Building in Washington, D.C.
This article is part of the magazine, "The Future of Science In America: The Election Issue," co-published by LeapsMag, the Aspen Institute Science & Society Program, and GOOD.
Viability—the potential for a fetus to survive outside the womb—is a core dividing line in American law. For almost 50 years, the Supreme Court of the United States has struck down laws that ban all or most abortions, ruling that women's constitutional rights include choosing to end pregnancies before the point of viability. Once viability is reached, however, states have a "compelling interest" in protecting fetal life. At that point, states can choose to ban or significantly restrict later-term abortions provided states allow an exception to preserve the life or health of the mother.
This distinction between a fetus that could survive outside its mother's body, albeit with significant medical intervention, and one that could not, is at the heart of the court's landmark 1973 decision in Roe v. Wade. The framework of viability remains central to the country's abortion law today, even as some states have passed laws in the name of protecting women's health that significantly undermine Roe. Over the last 30 years, the Supreme Court has upheld these laws, which have the effect of restricting pre-viability abortion access, imposing mandatory waiting periods, requiring parental consent for minors, and placing restrictions on abortion providers.
Viability has always been a slippery notion on which to pin legal rights.
Today, the Guttmacher Institute reports that more than half of American women live in states whose laws are considered hostile to abortion, largely as a result of these intrusions on pre-viability abortion access. Nevertheless, the viability framework stands: while states can pass pre-viability abortion restrictions that (ostensibly) protect the health of the woman or that strike some kind a balance between women's rights and fetal life, it is only after viability that they can completely favor fetal life over the rights of the woman (with limited exceptions when the woman's life is threatened). As a result, judges have struck down certain states' so-called heartbeat laws, which tried to prohibit abortions after detection of a fetal heartbeat (as early as six weeks of pregnancy). Bans on abortion after 12 or 15 weeks' gestation have also been reversed.
Now, with a new Supreme Court Justice expected to be hostile to abortion rights, advances in the care of preterm babies and ongoing research on artificial wombs suggest that the point of viability is already sooner than many assume and could soon be moved radically earlier in gestation, potentially providing a legal basis for earlier and earlier abortion bans.
Viability has always been a slippery notion on which to pin legal rights. It represents an inherently variable and medically shifting moment in the pregnancy timeline that the Roe majority opinion declined to firmly define, noting instead that "[v]iability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks." Even in 1977, this definition was an optimistic generalization. Every baby is different, and while some 28-week infants born the year Roe was decided did indeed live into adulthood, most died at or shortly after birth. The prognosis for infants born at 24 weeks was much worse.
Today, a baby born at 28 weeks' gestation can be expected to do much better, largely due to the development of surfactant treatment in the early 1990s to help ease the air into babies' lungs. Now, the majority of 24-week-old babies can survive, and several very premature babies, born just shy of 22 weeks' gestation, have lived into childhood. All this variability raises the question: Should the law take a very optimistic, if largely unrealistic, approach to defining viability and place it at 22 weeks, even though the overall survival rate for those preemies remains less than 10% today? Or should the law recognize that keeping a premature infant alive requires specialist care, meaning that actual viability differs not just pregnancy-to-pregnancy but also by healthcare facility and from country to country? A 24-week premature infant born in a rural area or in a developing nation may not be viable as a practical matter, while one born in a major U.S. city with access to state-of-the-art care has a greater than 70% chance of survival. Just as some extremely premature newborns survive, some full-term babies die before, during, or soon after birth, regardless of whether they have access to advanced medical care.
To be accurate, viability should be understood as pregnancy-specific and should take into account the healthcare resources available to that woman. But state laws can't capture this degree of variability by including gestation limits in their abortion laws. Instead, many draw a somewhat arbitrary line at 22, 24, or 28 weeks' gestation, regardless of the particulars of the pregnancy or the medical resources available in that state.
As variable and resource-dependent as viability is today, science may soon move that point even earlier. Ectogenesis is a term coined in 1923 for the growth of an organism outside the body. Long considered science fiction, this technology has made several key advances in the past few years, with scientists announcing in 2017 that they had successfully gestated premature lamb fetuses in an artificial womb for four weeks. Currently in development for use in human fetuses between 22 and 23 weeks' gestation, this technology will almost certainly seek to push viability earlier in pregnancy.
Ectogenesis and other improvements in managing preterm birth deserve to be celebrated, offering new hope to the parents of very premature infants. But in the U.S., and in other nations whose abortion laws are fixed to viability, these same advances also pose a threat to abortion access. Abortion opponents have long sought to move the cutoff for legal abortions, and it is not hard to imagine a state prohibiting all abortions after 18 or 20 weeks by arguing that medical advances render this stage "the new viability," regardless of whether that level of advanced care is available to women in that state. If ectogenesis advances further, the limit could be moved to keep pace.
The Centers for Disease Control and Prevention reports that over 90% of abortions in America are performed at or before 13 weeks, meaning that in the short term, only a small number women would be affected by shifting viability standards. Yet these women are in difficult situations and deserve care and consideration. Research has shown that women seeking later terminations often did not recognize that they were pregnant or had their dates quite wrong, while others report that they had trouble accessing a termination earlier in pregnancy, were afraid to tell their partner or parents, or only recently received a diagnosis of health problems with the fetus.
Shifts in viability over the past few decades have already affected these women, many of whom report struggling to find a provider willing to perform a termination at 18 or 20 weeks out of concern that the woman may have her dates wrong. Ever-earlier gestational limits would continue this chilling effect, making doctors leery of terminating a pregnancy that might be within 2–4 weeks of each new ban. Some states' existing gestational limits on abortion are also inconsistent with prenatal care, which includes genetic testing between 12 and 20 weeks' gestation, as well as an anatomy scan to check the fetus's organ development performed at approximately 20 weeks. If viability moves earlier, prenatal care will be further undermined.
Perhaps most importantly, earlier and earlier abortion bans are inconsistent with the rights and freedoms on which abortion access is based, including recognition of each woman's individual right to bodily integrity and decision-making authority over her own medical care. Those rights and freedoms become meaningless if abortion bans encroach into the weeks that women need to recognize they are pregnant, assess their options, seek medical advice, and access appropriate care. Fetal viability, with its shifting goalposts, isn't the best framework for abortion protection in light of advancing medical science.
Ideally, whether to have an abortion would be a decision that women make in consultation with their doctors, free of state interference. The vast majority of women already make this decision early in pregnancy; the few who come to the decision later do so because something has gone seriously wrong in their lives or with their pregnancies. If states insist on drawing lines based on historical measures of viability, at 24 or 26 or 28 weeks, they should stick with those gestational limits and admit that they no longer represent actual viability but correspond instead to some form of common morality about when the fetus has a protected, if not absolute, right to life. Women need a reasonable amount of time to make careful and informed decisions about whether to continue their pregnancies precisely because these decisions have a lasting impact on their bodies and their lives. To preserve that time, legislators and the courts should decouple abortion rights from ectogenesis and other advances in the care of extremely premature infants that move the point of viability ever earlier.
[Editor's Note: This article was updated after publication to reflect Amy Coney Barrett's confirmation. To read other articles in this special magazine issue, visit the e-reader version.]
Dr. Emily Oster on Decision-Making and the Kids' Covid Vaccine
Dr. Emily Oster, Brown economist and bestselling author, stops by the podcast for a robust discussion on the kids' Covid vaccine as well as her expectations for school vaccine and mask policies in 2022.
The "Making Sense of Science" podcast features interviews with leading medical and scientific experts about the latest developments and the big ethical and societal questions they raise. This monthly podcast is hosted by journalist Kira Peikoff, founding editor of the award-winning science outlet Leaps.org.
This month, Brown economist and bestselling author Dr. Emily Oster breaks down her decision-making process about why she vaccinated her kids against Covid, and the helpful frameworks other parents can use to think through the decision for their own kids. She also discusses her expectations for school policies regarding vaccines and masks in 2022.
Watch the trailer:
Listen to the Episode:
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Kira Peikoff was the editor-in-chief of Leaps.org from 2017 to 2021. As a journalist, her work has appeared in The New York Times, Newsweek, Nautilus, Popular Mechanics, The New York Academy of Sciences, and other outlets. She is also the author of four suspense novels that explore controversial issues arising from scientific innovation: Living Proof, No Time to Die, Die Again Tomorrow, and Mother Knows Best. Peikoff holds a B.A. in Journalism from New York University and an M.S. in Bioethics from Columbia University. She lives in New Jersey with her husband and two young sons. Follow her on Twitter @KiraPeikoff.
Six Questions about the Kids' COVID Vaccine, Answered by an Infectious Disease Doctor
The author, an infectious disease physician, pictured with his two daughters who are getting vaccinated against COVID-19.
I enthusiastically support the vaccination against COVID for children aged 5-11 years old. As an infectious disease doctor who took care of hundreds of COVID-19 patients over the past 20 months, I have seen the immediate and long-term consequences of COVID-19 on patients – and on their families. As a father of two daughters, I have lived through the fear and anxiety of protecting my kids at all cost from the scourges of the pandemic and worried constantly about bringing the virus home from work.
It is imperative that we vaccinate as many children in the community as possible. There are several reasons why. First children do get sick from COVID-19. Over the course of the pandemic in the U.S, more than 2 million children aged 5-11 have become infected, more than 8000 have been hospitalized, and more than 100 have died, making COVID one of the top 10 causes of pediatric deaths in this age group over the past year. Children are also susceptible to chronic consequences of COVID such as long COVID and multisystem inflammatory syndrome in children (MIS-C). Most studies demonstrate that 10-30% of children will develop chronic symptoms following COVID-19. These include complaints of brain fog, fatigue, trouble breathing, fever, headache, muscle and joint pains, abdominal pain, mood swings and even psychiatric disorders. Symptoms typically last from 4-8 weeks in children, with some reporting symptoms that persist for many months.
Second, children are increasingly recognized as vectors who can bring infection into the house, potentially transmitting infection to vulnerable household members. Finally, we have all seen the mayhem that results when one child in the classroom becomes infected with COVID and the other students get sent home to quarantine – across the U.S., more than 2000 schools have been affected this way.
We now have an extraordinarily effective vaccine with more than 90 percent efficacy at preventing symptomatic infection. Vaccinating children will boost our countrywide vaccination rate which is trailing many countries after an early start. Nevertheless, there are still many questions and concerns that parents have as the vaccine gets rolled out. I will address six of them here.
"Novel Vaccine Technology"
Even though this is a relatively new vaccine, the technology is not new. Scientists had worked on mRNA vaccines for decades prior to the COVID mRNA vaccine breakthrough. Furthermore, experience with the Pfizer COVID vaccine is rapidly growing. By now it has been more than a year and a half since the Pfizer trials began in March 2020, and more than 7 billion doses have already been administered globally, including in 13.7 million adolescents in the U.S. alone.
"Will This Vaccine Alter My Child's DNA?"
No. This is not how mRNA works. DNA is present in the cell's nucleus. The mRNA only stays in the outside cytoplasm, gets destroyed and never enters the inner sanctum of the nucleus. Furthermore, for the mRNA to be ever integrated into DNA, it requires a special enzyme called reverse transcriptase which humans don't have. Proteins (that look like the spike proteins on SARS-CoV-2) are made directly from this mRNA message without involvement of our DNA at any time. Pieces of spike proteins get displayed on the outside of our cells and our body makes protective antibodies that then protects us handily against the future real virus if it were ever to enter our (or our children's) bodies. Our children's DNA or genes can never be affected by an mRNA vaccine.
"Lack of Info on Long-Term Side Effects"
Unlike medications that are taken daily or periodically and can build up over time, the mRNA in the Pfizer vaccine is evanescent. It literally is just the messenger (that is what the "m" in mRNA stands for) and the messenger quickly disappears. mRNA is extremely fragile and easily inactivated – that's why we need to encase it in a special fatty bubble and store the vaccines at extremely cold temperatures. Our cells break down and destroy the mRNA within a few days after receiving the instructions to make the virus spike proteins. The presence of these fragments of the virus (note this is not "live" virus) prompts our immune system to generate protective antibodies to the real thing. Our bodies break down mRNA all the time in normal cellular processes – this is nothing new.
What the transience of the delivery system means is that most of the effects of the mRNA vaccines are expected to be more immediate (sore arm, redness at the site, fever, chills etc.), with no long-term side effects anticipated. A severe allergic response has been reported to occur in some generally within the first 15 minutes, is very rare, and everyone gets observed for that as part of standard vaccine administration. Even with the very uncommon complication of myocarditis (inflammation of the heart muscle) and pericarditis (inflammation of the lining of the heart) seen primarily in young men under the age of 30 following mRNA vaccines, these typically happen within days to 2 weeks and many return to work or school in days. In the 70-year history of pediatric (and adult vaccines), dangerous complications happen in the first two months. There have been millions of adolescents as young as 12 years and thousands in the initial trial of children aged 5-11 who have already received the vaccine and are well beyond the two-month period of observation. There is no biological reason to believe that younger children will have a different long-term side effect profile compared to adolescents or adults.
"Small Sample Size in Kids and the Trial Design"
Although the Pfizer trial in children aged 5-11 was relatively small, it was big enough to give us statistical confidence in assessing safety and efficacy outcomes. Scientists spend a lot of time determining the right sample size of a study during the design phase. On one hand, you want to conduct the study efficiently so that resources are used in a cost-effective way and that you get a timely answer, especially in a fast-moving pandemic. On the other hand, you want to make sure you have enough sample size so that you can answer the question confidently as to whether the intervention works and whether there are adverse effects. The more profound the effect size of the intervention (in this case the vaccine), the fewer the numbers of children needed in the trials.
Statistics help investigators determine whether the results seen would have appeared by chance or not. In this case, the effect was real and impressive. Over 3,000 children around the world have received the vaccines through the trials alone with no serious side effects detected. The first press release reported that the immune response in children aged 5-11 was similar (at one-third the vaccine dose) to the response in the comparator group aged 16-25 years old. Extrapolating clinical efficacy results from immune response measurements ("immunobridging" study) would already have been acceptable if this was the only data. This is a standard trial design for many pediatric vaccines. Vaccines are first tested in the lab, followed by animals then adults. Only when deemed safe in adults and various regulatory bodies have signed off, do the pediatric vaccine trials commence.
Because children's immune systems and bodies are in a constant state of development, the vaccines must be right-sized. Investigators typically conduct "age de-escalation" studies in various age groups. The lowest dose is first tried so see if that is effective, then the dose is increased gradually as needed. Immune response is the easiest, safest and most efficient way to test the efficacy of pediatric vaccines. This is a typical size and design of a childhood vaccine seeking regulatory approval. There is no reason to think that the clinical efficacy would be any different in children vs. adults for a given antibody response, given the experience already in the remainder of the population, including older children and adolescents. Although this was primarily designed as an "immunobridging" study, the initial immunologic response data was followed by real clinical outcomes in this population. Reporting on the outcomes of 2,268 children in the randomized controlled trial, the vaccine was 90.7% effective at preventing symptomatic infection.
"Fear of Myocarditis"
Myocarditis (inflammation of the heart muscle) and pericarditis (inflammation of the lining of the heart) have been associated with receipt of the mRNA vaccines, particularly among male adolescents and young adults, typically within a few days after receiving the second dose. But this is very rare. For every million vaccine recipients, you would expect 41 cases in males, and 4 cases in females aged 12-29 years-old. The risk in older age groups is substantially lower. It is important to recognize that the risk of myocarditis associated with COVID is substantially higher. Patients present with new chest pain, shortness of breath, or palpitations after receiving an mRNA vaccine (more common after the second dose). But outcomes are good if associated with the vaccine. Most respond well to treatment and resolve symptoms within a week. There have been no deaths associated with vaccine-associated myocarditis.
In contrast, COVID-associated myocarditis has been associated with more severe cases as well as other complications including chronic symptoms of long COVID. The risk of myocarditis is likely related to vaccine dose, so the fact that one-third the dose of the vaccine will be used in the 5-11 year-olds is expected to correspond to a lower risk of myocarditis. At the lower dose given to younger kids, there has been a lower incidence of adverse effects reported compared to older children and adults who received the full dose. In addition, baseline rates of myocarditis not associated with vaccination are much lower in children ages 5-11 years than in older children, so the same may hold true for vaccine-associated myocarditis cases. This is because myocarditis is associated with sex hormones (particularly testosterone) that surge during puberty. In support of this, the incidence of vaccine-associated myocarditis is lower in 12–15-year-old boys, compared to those who were older than 16 years old. There were no cases of myocarditis reported in the experience to date of 5–11-year-old children in the trials, although the trial was too small to pick up on such a rare effect.
"Optimal Dose Spacing Interval: Longer Than 3 Weeks?"
There is a biologic basis for increasing the interval between vaccine doses in general. Priming the immune system with the first shot and then waiting gives the second shot a better chance of prompting a secondary immune reaction that results in a more durable response (with more T cell driven immune memory). One study from the U.K. showed that the antibody response in people over 80 was more than 3 times higher if they delayed the second dose to after 12 weeks for the Pfizer vaccine instead of the 3 weeks studied in trials. In a study of 503 British health care workers, there were twice as many neutralizing antibodies produced in a longer interval group (6-14 weeks) versus a shorter interval group (3-4 weeks) between doses. However, the safety and efficacy with longer intervals has not been evaluated in the pediatric or other COVID vaccine trials.
In the U.S., the C.D.C. reported that 88 percent of counties are at a "high" or "substantial" level of community transmission. Also, Europe is already experiencing a winter surge of infections that may predict more U.S. winter cases as international travel reopens. During a time of high community virus burden with a highly transmissible Delta variant, relying on one dose of vaccine for several more weeks until the second may leave many more susceptible to infection while waiting. One study from England showed that one dose of the Pfizer vaccine was only 33% protective against symptomatic Delta infection in contrast to 50% for the Alpha variant in adults. There has been no corollary information in children but we would expect less protection in general from one vaccine dose vs. two. This is a particularly important issue with the upcoming holiday season when an increased number of families will travel. Some countries such as the U.K. and Norway have proceeded with only offering older than 12 year-olds one dose of vaccine rather than two, but this was before the current European surge which may change the risk-benefit calculus. There are no plans to only offer one vaccine dose in the U.S. at this time. However a lower dose of the vaccine will likely be studied in the future for adolescents aged 12-15.
For parents worried about the potential risk of adverse effects of two doses of vaccines in their children, it is reasonable to wait 6-12 weeks for the second shot but it all depends on your risk-benefit calculus. There is biological plausibility to pursue this strategy. Although there is no pediatric-specific data to draw from, a longer interval may lengthen immune memory and potentially decrease the risk of myocarditis, particularly in boys. There may only be partial benefit in eliciting protective antibodies after one vaccine dose but only 2-4% of children are hospitalized with COVID once infected, with risk of severe illness increasing if they have comorbidities.
There are also some data indicating that 40% of children have already been exposed to infection naturally and may not need further protection after one shot. However, this percentage is likely a large overestimation given the way the data was collected. Using antibody tests to ascertain previous infection in children may be problematic for several reasons: uncertainty regarding duration of protection, variability in symptoms in children with most having very mild symptoms, and the lack of standardization of antibody tests in general. Overall, if the child has medical comorbidities such as diabetes, parents are planning to travel with their children, if local epidemiology shows increasing cases, and if there are elderly or immunocompromised individuals in the household, I would vaccinate children with two doses as per the original recommended schedule.
Bottom line: Given the time of the year and circulating Delta, I would probably stick with the recommended 3-week interval between doses for now for most children. But if parents choose a longer interval between the first and second dose for their children, I wouldn't worry too much about it. Better to be vaccinated - even if slowly, over time -- than not at all.